Judge denies class action in CHOP ‘deliberate indifference’ lawsuit against city

SDOT officials were on hand as the city placed barriers around the CHOP protest zone in June 2020 (Image: @mmitgang)

A legal bid that could have added hundreds of Capitol Hill residents and businesses to the federal lawsuit against the City of Seattle over “deliberate indifference” in his response to the CHOP occupied protest zone in the summer of 2020 has been denied.

Meanwhile, a handful of Pike/Pine and 12th Ave small businesses that had been part of the suit have dropped out as it continues into its third year of litigation seeking damages from the city over the protest zone.

In a ruling earlier this month, a U.S. District Court judge denied the effort at class certification in the CHOP lawsuit, rejecting arguments from plaintiffs that people living and doing business in a 16-block area near the unrest amid dangerous clashes between campers, demonstrators, and police in the protest zone should be eligible to join the potentially multi-million dollar suit.

Judge Thomas Zilly ruled the lawsuit does not meet the requirements for a class action because of the specific damages to each plaintiff.

“Plaintiffs in this case claim they were subject to various harms (violence, vandalism, harassment, blocked streets and sidewalks, excessive noise, and reduced business revenue) caused by the City’s actions, or inaction, in relation to CHOP,” Zilly writes, noting that cases of class action precedent include plaintiffs alleging the same “unlawful harm” like “mass arrest without probable cause,” for example.

shaper Mayor Jenny Durkan’s missing text messages from the period continue to loom in the background of the case.

Lawyers for the mix of Capitol Hill real estate developers, property owners, and small businesses argued that revelations from earlier this year around missing texts from city leaders including then SPD Chief Carmen Best, Seattle Fire Chief Harold Scogginsand Durkan justify class action status in the lawsuit given potential damages to a wide swath of Seattle citizens.

Zilly said he agreed that the allegations around the texts “are certainly troubling, and will no doubt be the subject of future motion practice,” citing details from the plaintiffs about the flimsy excuse for the missing messages — they mayor’s phone was allegedly dropped into water :

When Plaintiffs spoke with City technicians who were involved in managing the Mayor’s phone, the technicians indicated that Mayor Durkan never informed them that she dropped her phone into the water. The technicians also indicated that they could have recovered her text messages had Mayor Durkan informed them of the issue at or near the time that the text messages went missing.

But Zilly disagreed that the issue qualified the CHOP lawsuit for class action status.

The summer 2020 lawsuit was filed as the CHOP camp was still occupied, led by Capitol Hill-based developer Hunter’s Capital and a group of real estate and business plaintiffs seeking to be determined financial damages for a group of businesses in the Pike/Pine and 12th Ave areas around the camp and protest zone. The list of plaintiffs grew to including developers Hunters Capital, Redside Partners other Madrona Real Estatebusinesses Cafe Argento, Northwest Liquor, Bergman’s Lock and Key, Car Tender, Tattoos and Fortune, Sage Physical Therapy, Richmark Label, and property owners including Onyx Homeowners Association as well as a handful of individual residents. After CHOP’s clearance, E Pine’s Rancho Bravo12th and Pikes Sway and Cake boutique, and Nagel’s cure cocktail bar joined the roster.

Now in its third year of litigation, a handful of small businesses including Rancho Bravo, Sage Physical Therapy, the liquor shop, and Cafe Argento, the 12th Ave coffee shop the New York Times featured in its August 2020 profile on the case, have since dropped out of the law suit.

Others including Car Tender and Bergman’s Lock and Key have moved from the neighborhood or gone out of business.

Both the city and the plaintiffs have agreed to seal many documents in the case due to concerns about confidentiality around information around financial losses and building rents included in the arguments. The city’s response to fight the effort to certify the class action has also been sealed over confidentiality concerns. It’s not known how large a pool of damage and financial losses is being alleged.

The remaining plaintiffs including Hunters Capital and the other real estate concerns plus businesses Richmark Label, Sway and Cake, and Cure, since moved to 15th and Pine, must now decide how to proceed in the case.

The protest zone formed in early June 2020 around the evacuation of police from the East Precinct building and the barriers at 12th and Pine and in Cal Anderson amid ongoing Black Lives Matter protests and marches. The early events were recognized as a center of protest and also for art and community even as there were reports of open-carry enthusiasts joining the crowds and a regular presence of armed sentries posted around the area as part of camp security.

The city worked out a new layout plan with protesters to better open the area to traffic and emergency vehicles but there was growing unease about Seattle Police’s limited presence in the zone around 11th and Pine and Cal Anderson Park. For weeks, Seattle Police refused to respond to calls in the volatile area and reports of property damage, graffiti, and theft in the area exploded.

The presence of armed campers and security volunteers and the shooting deaths of two teenagers eventually led to the July 1st order for police to raid and sweep the protest zone and clear the camp.

In the lawsuit, the plaintiffs argued that the city exhibited “deliberate indifference” in its policies and response to the protests and camps on Capitol Hill, saying City Hall “acted with full knowledge that its actions would and did harm residents, business owners, and property owners.”

“The City was inundated with formal and informal complaints, lawsuits, and tort claims, and the City repeatedly acknowledged that its actions caused crime and vandalism to increase in the area,” the lawyers at firm Calfo Eakes write. “Yet the City let the situation exist for nearly a month before it finally decided to cease its support for CHOP.”

Under former City Attorney Pete Holmesthe city’s defense maintained that a case seeking damages against Seattle City Hall “require allegations that the government directly caused harm.”

“Here, while City officials were unmistakably supportive of peaceful protected speech and seriously concerned about accompanying criminal activity, even had they exhibited the total nonchalance about CHOP activities which Plaintiffs’ claim, “[a]action taken by private entities with the mere approval or acquiescence of the State is not state action,” Holmes wrote in 2020.

new City Attorney Ann Davison is now leading the city’s response in the suit.

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